Bunge Corpn v. Tradax SA翻译(国际商法第三章P98—P100).doc

Bunge Corpn v. Tradax SA邦基公司诉特达克斯出口公司SA案An fob standard form contract (GAFTA 119),incorporated into an agreement for sale and purchase, provided that the buyers had to give the sellers fifteen days notice of probable readiness of the vessel nominated for use for shipment of the goods. 交货标准形式合同(GAFTA 119),纳入一个买卖协议,买方必须提供给卖方可能准备提前十五天通知船舶提名用于装运的货物。The buyers gave only thirteen days notice and the sellers claimed that this was a breach of condition entitling them to rescind the contract.买家只给了卖方提前十三天的通知，因此，卖家声称这一个违反条件使他们享有解除合同的权利。They damage for the loss sustained by reason of their being unable to deliver the good in time and the sale going uncompleted at the contract price which was higher than the current market price: Held in a mercantile contract, when a term had to be performed by one party as a condition precedent to the ability of the other party to perform another term, especially an essential term such as ensuring that the goods sold would be available for shipment at a certain time and place, the term as to time for the performance of the former obligation would in general fall to be treated as a condition.他们持续亏损的原因是因为他们无法及时交货和未完成的合同价格高于当前市场价格:在商业合同中,当一个术语必须由一方作为一个先决条件,另一方必须来执行另一方所提出的术语,尤其是一个重要术语,譬如确保产品可以在特定的时间和地点,交货时间性能的任期前义务将通常被视为一个条件。In the present case the term would be so treated and the buyers were consequently in breach.在目前的情况下,术语被如此对待所以买方违反规定。The court would uphold the claim of the sellers.法院将维护卖方的索赔。Under a contract which incorporated GAFTA from 119 the buyers agreed to purchase from the sellers 15000 tons of soya bean meal, 5% more or less, for shipment form the United States.根据一份纳入GAFTA119的合同中，买方同意从卖方购买15000吨大豆,5%溢短装,在美国交货。It was the practice in the trade for a string of contracts to be made in which the shipment contract was merely an intermediate contract made in the course of the passage of the goods from the supplier to the eventual receiver.这是在合同的字符串的贸易实践中做了发言，装运合同仅仅是在货物从供应商到最终的接收器通道的过程中作出一个中间合同。The terms of the parties contract required three shipments of 5000 tons fob from an American port in the Gulf to Mexico nominated by the sellers.双方的合同条款中规定5000吨货物以FOB的方式分三批从海湾的美国港口运到墨西哥并由卖方提名。By agreement between the parties one of the shipments was to be during June 1975.经双方协议，出货批量中的一批是在1975年6月期间出货。 The buyers were to provide a vessel at the nominated port and by virtue of clause 7 of form 119 as completed by the parties they were required to give at least 15 consecutive days notice of the probable readiness of the vessel.买家提供在指定港口的船并根据119章第7条款要求“给连续至少15天通知”来准备船。If the goods were to be shipped during June the buyers were therefore required to give notice of their vessels readiness by June 13.如果货物六月期间装运，买方因此要求6月13日给他们的船只已准备就绪通知书。In fact the buyers did not give notice until June 17.事实上，买方并没有给出提示，直到6月17日。The sellers claimed that the late notice was a breach of contract amounting to a repudiation and claimed damages from the buyers on the basis that by then the market price had fallen by over $US60 a ton.卖方声称通知延迟是不可否认的违反了合同并且要求赔偿根据买方届时市场价格已下跌了超过的60美元/吨的金额。The dispute was referred to arbitration where the sellers were awarded $US317500 damages.该项争端已提交仲裁，其中卖家被授予317500美元赔偿。Those damages were computed on the basis that the quantity involved was 5000tons, having regard to clause 22 of form 119 which stipulated, inter alia, that” In the event of default in shipment or delivery, damages were to be computed upon the mean contract quantity” (ie 5000 tons).这些损害赔偿计算的基础上，涉及的数量为5000吨，考虑到表119中规定，条款22，除其他外，“在装船或交付违约，赔偿是计算后的平均合同量”（即5000吨）。On appeal to the Commercial Court the judge reversed that award on the ground that the term as to time when notice was required to be given was not a condition but an intermediate term and the lateness of the notice did not amount to a breach of contract.在上诉到商业法庭，法官推翻了这项赔偿，并认为在中期的时间通知和通知延迟不算违反合同期限。The Court of Appeal reversed that finding on the ground that the term was a condition, and restored the award of damages.上诉法院推翻了，这个期限是一个条件，并恢复了损害赔偿金的裁决。The Court of Appeal, however, reduced the award on the ground that clause 22 of form 119 was restricted to default by the sellers and did not therefore apply to the award which was , on ordinary principles, to be computed on the minimum quantity the buyers were required to take, namely 4750 tons (ie 5000 tons less 5%).上诉法院，然而，减少了赔偿，理由是119章第22条只限于由卖方违约，因此并不适用于该赔偿，在一般原则下，要计算的最小数量的买家需要，即4750吨（5000吨以下5%）。The buyers appealed to the House of Lords , contending that the term as to notice was an intermediate term ,that the effect of a breach of the term depended on the gravity of the breach, and that (as the sellers conceded) if the term was not a condition but merely an intermediate term the breach was not sufficiently serious to entitle the sellers to treat the contract as being repudiated.买方向上议院上诉，争辩说，通知是一个中间术语，违约的影响取决于违约的严重性，而（作为卖方承认）如果期限没有条件只是一个中期违约是不足够严重的称作卖方将合同作为否定。The sellers cross-appealed, contending clause 22 of form 119 applied to the award and therefore the damages ought to be based on a quantity of 5000 tons: Held (1) The buyers appeal would be dismissed for the following reasons: (a) Stipulations as to time in mercantile contracts were generally to be treated as conditions (breach of which, no matter how minor, entitled the innocent party to treat the contract as at an end) and not as intermediate or innominate terms, because the reason for such a clause was to enable each party to organise his affairs to meet obligations arising in the future under the contract and not merely to determine, with the benefit of hindsight, the appropriate remedy when a breach occurred. 卖方交叉上诉，争辩119章22条适用于裁决，因此损害赔偿应基于5000吨的数量：持有（1）的买家的上诉将被驳回原因如下：（a）在商业合同中规定时间一般被视为条件（其中，无论多么微小，无辜的一方有权对违反合同的一方提出结束合同关系）而不是作为中间或无名条款，因为这样的条款能使每一方组织自己的事务，以满足在未来的合同中所产生的义务，而不仅仅是确定，与事后看来，违约发生时，能有适当的补救。Furthermore, the need for certainty, especially when there was a string of contracts involved, required such a clause to be strictly adhered to.此外，需要确定的，尤其是当涉及一系列的合同时，要求严格遵守这样的条款。(b) Whether a stipulation in a contract, including a stipulation as to time, was either expressly or impliedly a condition depended on the construction of the contract as at the time it was made and in the light of the surrounding circumstances, including, in the case of an obligation as to time, the nature of the subject matter and whether there was an express clause or notice that time was of the essence.（b）无论是合同中的规定，包括时间的规定，无论是明示或默示的条件取决于当时合同的签订和周围的环境的亮度，包括，在时间的义务的情况下，标的物的性质和是否有一个明确的条款或注意到时间的本质。Furthermore, when performance by one party of a stipulation in a mercantile contract was a condition precedent to the ability of the other party to perform his obligations, a stipulation as to time of performance by the first party was generally to be treated as a condition,此外，当通过在商品合同约定一方的表现是一个先决条件，以对方履行义务的能力，一个规定来履行期限由第一方普遍被视为一个条件。In the light of the surrounding circumstances and the fact that the sellers could not nominate the port of loading until they received notice from the buyers of their vessels readiness, the stipulation in clause 7 of form 119 that the buyers were to give at least 15 days notice of readiness was a condition ,and the sellers were therefore entitled to treat the contract as repudiated when the buyers failed to give the requisite 15 days notice and to claim damages.在一般的情况和事实上，卖方不能指定装货港，直到收到买方的通知他们的船只准备就绪，在119章第7条规定，卖方至少给买方提供15天的准备就绪通知是一种条件，因此，卖方有权对合同视为当买家未能给予